Orange, CA - This post is off topic, but these traffic cameras are popping up everywhere and some research shows that they cause more accidents than they prevent. The Appellate Division in the County of Orange recently ruled that the red light photo evidence was inadmissible because it lacked foundation, was hearsay, and violated the Defendant's confrontation rights. The Court held that the only person to testify, i.e. the officer, could not establish the time in question, the method of retrieval of the photographs, or the technology used.

We hold that the trial court erred in admitting the photographs and the accompanying declaration over the appellant’s hearsay and confrontation clause objections. Absent the photographs and content in the declaration, there is insufficient evidence to support the violation. Accordingly we reverse the judgment.

Los Angeles, CA – Columbia Insurance Company owns the See’s Candy trademarks and exclusively licenses the marks back to See’s Candy Shops, Inc. The See’s Candy trademarks were first used in 1921 and have been registered with the USPTO and in other countries.

The complaint, however, does not appear to provide sufficient information to pass a Rule 12 motion to dismiss. In 2007, the Supreme Court’s Twombly decision stated that under Rule 8(a)(2) a plaintiff’s obligation to provide the grounds for relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In 2009, the Supreme Court’s Iqbal decision expanded the application of Twombly to all civil cases. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Thus, a complaint will be dismissed uner Rule 12(b)(6) if it fails to meet the Twombly pleading standard. See e.g. Anticancer, Inc. v. Xenogen Corp., 248 F.R.D. 278 (S.D. Cal. 2007)

Los Angeles, CA – Brian Everett filed a copyright infringement lawsuit against Endeavor Talent Agency, LLC, alleging that his treatment “El Royale” was used to create CBS’s “Welcome to the Captain” television show. Everett claims that he developed the “El Royale” television concept in 2005 and early 2006. In addition, he claims to have written the script and shot key concept segments to assist in the sale of the program concept to third parties.

Everett alleges that in March of 2006 he sent the concept shots and script to a director’s agent at Endeavor, but heard nothing. He again claims to have sent the script to the same agent in 2007, and this time it made it to a television agent, but Endeavor declined to represent Everett because of its representation of other talent working on a similar concept. Everett alleges that “Endeavor provided Everett’s ‘El Royale’ concept to the creators of ‘Welcome to the Captain’ – and they thereafter used Everett’s script, visuals, story and character concepts in developing ‘Welcome to the Captain,’ with Endeavor’s knowledge and consent.” The case is Brian Everett v. Endeavor Talent Agency, LLC, CV10-4895 AHM (C.D. Cal. 2010).

Los Angeles, CA – Rapper Mack 10, real name Dedrick Rolison, is being sued for copyright infringement for allegedly using Ervin “EP” Pope’s musical compositions. (Read the complaint here). Pope is a music producer who creates, mixes, and remixes audio recordings for various music recording artists and record companies. He alleges that in 2009, he produced and composed underlying musical compositions at the request of Mack 10 and record companies for a total of $60,000.00. The complaint contends that because there was no written agreement and Pope was not paid, he remained the copyright owner in the compositions, which he has registered with the U.S. Copyright Office.

Mack 10 is accused of using the underlying musical compositions in his songs “Big Balla” and “It’s Your Life,” which are on his latest “Soft White” album. “Plaintiff EP was credited on the Infringing Album with authoring the Infringing Songs, however, as stated, Plaintiff EP never signed an agreement authorizing any of the Defendants to sell or exploit the Infringing Songs embodying Plaintiff’s Musical Compositions for commercial gain.” The case is Ervin Pope v. Fontana Distribution, LLC, et al., CV10-4907 MRP (C.D. Cal. 2010).

PRACTICE NOTE: In addition to the federal copyright infringement cause of action, Pope asserts a common law copyright infringement cause of action, which appears to be preempted by the Copyright Act. Mention v. Gessell, 714 F.2d 87, 90 (9th Cir. 1983) (“The Copyright Act of 1976 preempts common law copyright claims, unless the claims arose from undertakings commenced before January 1, 1978."). Because Pope asserts that he composed the music in 2009, the common law copyright infringement cause of action is preempted. See 17 U.S.C. § 301(a).

San Francisco, CA – The Wine Group has filed a trademark infringement lawsuit in the Northern District Court of California against Diageo PLC. Plaintiff sells a wine-based beverage that contains tea flavors under its Olde Savannah Southern Style Sweet Tea trademark, which it started using in December of 2009. According to the complaint, Plaintiff has sold over 29,000 cases of the beverage since December and plans on expanding the use of the mark to vodka-based beverages. In November of 2009, Plaintiff wisely filed an intent-to-use application with the USPTO prior to launching its product.

Diageo is the world’s largest wine, beer, and spirits company and owns the Smirnoff, Johnnie Walker, Captain Morgan, Jose Cuervo, and Guinness brands. Plaintiff alleges that Diageo has recently introduced a vodka-based sweet tea beverage under the Savannah Tea trademark. Because Plaintiff allegedly has priority over Diageo in using the Savannah mark, it contends that “Diageo’s use of the Savannah Tea mark is likely to cause confusion among consumers in a variety of ways. For example, consumers are likely to believe, erroneously, (a) that Diageo’s alcohol-based sweet tea is somehow associated, affiliated, or connected with TWG’s alcohol-based sweet tea, or vice-versa or, (b) that Diageo’s alcohol-based sweet tea is sponsored, authorized, or approved by TWG, or vice-versa.” The case is The Wine Group LLC v. Diageo PLC, et al., CV10-2879 DMR (N.D. Cal. 2010).

On a related note, it appears that The Wine Group's Savannah trademark application is the subject of an opposition proceeding filed by Spier Wines before the TTAB. The parties, however, have filed a joint motion to suspend proceedings in furtherance of settlement discussions.